By Jon Cubetus
As New England states continue to remove the COVID-19 restrictions in place since early 2020, legislators are now wrestling with a byproduct of the pandemic that many argue should remain: remote access to public meetings.
With government proceedings online and the opportunity for the public to participate remotely, citizen engagement, at least anecdotally, dramatically increased during the last 17 months. The pandemic led to a new way for citizens to access government, but one that is at risk in states without a plan to allow remote meetings in the future.
“We need a permanent system requiring in-person meetings while also allowing online access for citizens who cannot be in the room,” recently said Justin Silverman, executive director of the New England First Amendment Coalition. “It’s a matter of access and public oversight.”
Here’s a look at some of the legislation — both good and bad — intending to address the issue in each New England state:
Several bills addressing Connecticut’s open meetings law were introduced earlier this year.
In April, Gov. Ned Lamont filed H.B. 6448 which required “meetings of all public agencies . . . [to] be open to the public and accessible to the public by means of electronic equipment.” Although the legislation did not require in-person meetings, it did require public bodies to provide a physical location and the electronic equipment necessary for members of the public to view the proceedings if they could not do so on their own.
Three other bills — S.B. 183, H.B. 6651 and S.B. 1074 — proposed nearly identical changes to Connecticut’s freedom of information laws by permitting public bodies to meet remotely so long as the public has the ability to view or listen to the meeting. Another bill, H.B. 6641, would have permitted public bodies to meet remotely or simultaneously in person so long as the public could participate in either form.
As Massachusetts recovers from the pandemic, changes to its open meeting law requirements in effect since last year will continue until at least April 1, 2022. Gov. Charlie Baker recently signed An Act Extending Certain COVID-19 Measures Adopted During the State of Emergency, which extends the ability of public bodies to meet remotely so long as they provide “adequate alternative means of public access.” Meanwhile, several pending bills in the Legislature seek to codify and make permanent changes to the state’s open meeting law.
S.B. 2082 and its companion H.B. 3152 would require “all meetings of a public body [to] be open to the public in a public place that is open and physically accessible to the public, and provide adequate, alternative means of public access,” such as through Zoom or teleconference. In short, public bodies would be required to host their meetings in person and remotely.
As NEFAC testified last month, permitting public bodies to meet only online, as the law currently stands, allows officials to more easily avoid their constituents. On the other hand, remote participation benefits citizens who have busy schedules or for other reasons cannot attend in-person meetings. S.B. 2082, with its requirement for both remote and in-person meetings, best expands access while ensuring accountability and public oversight.
In comparison, lawmakers are also considering S.B. 2104/H.B. 3213, which would permit public body members to participate in meetings remotely so long as they provide citizens access through “adequate, alternative means.” H.B. 3224/S.B. 2037 proposes the same remote access provisions as S.B. 2104, but is applicable only to “appointed statewide public bodies.” If passed, this set of bills would make pandemic-era adjustments permanent without any in-person meeting requirements, unless required by a law or regulation other than the open meeting law.
Earlier this summer, the Maine Legislature passed LD 32/SP 40, which permits public bodies to create polices that would be followed in the event of an emergency, illness, significant travel distance, or geographic impediment (e.g., islands not connected by bridges).
The Legislature also considered two other proposals. LD 668/HP 495 would have empowered public bodies to adopt policies allowing members to participate remotely so long as citizens can still listen to the meeting. LD 1578/SP 451 would have permitted the Legislature and any board, commission, agency, or authority of a municipality to conduct remote public proceedings so long as citizens can participate remotely too.
All these proposals, including the legislation passed this summer, suffer from the same deficiency: they do not guarantee citizens remote and in-person access to public proceedings.
The New Hampshire General Court considered two bills this session. The first, H.B. 216, would have codified the pandemic-related Executive Order 12 made on March 23, 2020. The order permitted public bodies to hold remote meetings without a physical location so long as citizens had access to that meeting through telephone or other electronic means. This bill expired in the House without action. The second, S.B. 95, would have established a committee to review allowing public bodies to conduct virtual meetings. This bill also failed, as it was not acted upon after a committee of conference could not agree on final language.
At least two proposals affecting the Rhode Island Open Meetings Act were recently introduced to the Rhode Island General Assembly.
H.B. 5891 would create three categories of meetings: in-person, virtual, and hybrid. It would also create different access requirements depending on the type of meeting. S.B. 543 would amend sections of the Open Meetings Act related to technology used to observe meetings, calculation of quorums, closed meeting procedures and notice requirements.
Legislators are not currently considering any bills guaranteeing in-person and remote access to open meetings — the primary point of concern expressed recently by NEFAC and other transparency advocates.
“All members of the public should be able to approach their officials and speak to them about the decisions they’re making,” NEFAC explained to lawmakers last month. “A quick disconnect via Zoom often makes that impossible.”
Two bills introduced in the Vermont General Assembly relate to open meeting requirements. H.B. 408 would amend 1 V.S.A. § 312 to require a public body to electronically broadcast all proceedings. The bill provides citizens the option of viewing online or in person. It does not, however, require public bodies to allow those viewing the broadcast remotely to participate. S.B. 87 is far more measured. It proposes a new section to the Vermont open meeting law that would permit public bodies to conduct electronic meetings only when affected by a hazard or state of emergency.
It should also be noted that lawmakers earlier this year considered a recommendation — one that NEFAC strongly opposed — that in-person legislative hearings be limited to lawmakers and their staff.
Jon Cubetus is a 2021 NEFAC Summer Legal Fellow and a rising second-year law student at Boston College Law School.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC include Hearst Connecticut Media Group, Paul and Ann Sagan, The Boston Globe, WBUR, Boston University and the Robertson Foundation.